IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Jason Jones, :

Plaintiff, :

v. : Case No. 2:11-cv-871

Warden Ross Correctional : JUDGE GREGORY L. FROST

Institution, et al., Magistrate Judge Kemp

 

Defendants. :

 ORDER

 The background of this prisoner civil rights case, involving

plaintiff Jason Jones’ claim that he was assaulted and injured by

other prisoners as a result of actions by prison officials, is

more fully set forth in this Court’s Report and Recommendation

filed on April 10, 2012. The recommendation made at that time,

and subsequently adopted by the Court, was that all claims

against Defendant Whitten, all state law claims, and Mr. Jones’

claim for injunctive relief, be dismissed, and that his claims

against the remaining defendants should proceed. Since that

time, the remaining defendants have filed an answer and the Court

has issued a scheduling order.

On May 7, 2012, Mr. Jones filed a response to the answer. 

Defendants moved to strike that response. More recently, Mr.

Jones moved for joinder of the Ohio Department of Rehabilitation

and Correction as a defendant, and also filed what he has called

a motion to compel discovery. This order resolves all of the

pending motions.

I.

Defendants’ motion to strike is based on the fact that,

under the Federal Rules of Civil Procedure, the filing of an

answer usually closes the pleadings, and a response to an answer

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is not allowed. Mr. Jones has responded by arguing that

defendants improperly used their answer to raise objections to

the Report and Recommendation, apparently by asserting in the

answer the defense of failure to state a claim upon which relief

can be granted. In his response to the answer, he also raises

some issues about the accuracy of the answer itself.

Defendants’ motion raises a basic procedural question,

namely, should the Court strike a pleading which the Rules of

Civil Procedure do not permit. The general answer to that

question is yes. As this Court has held, “[p]leadings which are

not timely filed, and for which the Court has not granted an

extension, are routinely stricken.” Amick v. Ohio Dept. of

Rehabilitation & Corrections, 2011 WL 4055246, *2 (S.D. Ohio

Sept. 8, 2011). The same rule applies to pleadings which are not

authorized at all. See, e.g., Oy Tilgmann, AB v. Sport Pub.

Intern., Inc., 110 F.R.D. 68 (E.D. Pa. 1986)(striking an amended

answer which was filed without leave of court). There is no

question that a response to an answer is an unauthorized

pleading. See Fed.R.Civ.P. 7(a)(“Only these pleadings are

authorized ... (7) if the court orders one, a reply to an

answer”). The Court did not order Mr. Jones’ reply, nor does it

find his arguments in opposition to the motion to strike

persuasive. Defendants are permitted to raise, in their answer, 

the affirmative defense of failure to state a claim upon which

relief can be granted. See Fed.R.Civ.P. 12(h)(2)(“ Failure to

state a claim upon which relief can be granted ... may be raised

(A) in any pleading allowed or ordered under Rule 7(a)”). 

Therefore, the Court will grant the motion to strike.

II.

Mr. Jones’ recent motions will, for different reasons, also

be denied. His motion for joinder is best construed as a motion

for leave to amend his complaint to add a new party defendant. 

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However, although the Court is generally required to grant leave

to amend freely, see Fed.R.Civ.P. 15(a), it need not do so when

the proposed amendment would be futile. Robinson v. Michigan

Consolidated Gas Co., 918 F.2d 579 (6th Cir.1990). The

Department of Rehabilitation and Correction is an arm of the

State of Ohio and is immune from suit in a federal court due to

the Eleventh Amendment. Stayner v. Ohio Dept. of Rehabilitation

and Correction, 2010 WL 2620586. *5 (S.D. Ohio June 25,

2010)(“The Eleventh Amendment proscribes suits in federal court

against the state or any of its agencies or departments unless

the state has given express consent, regardless of the relief

sought”). Therefore, the joinder of that agency as a defendant

in this case would be an exercise in futility.

Mr. Jones’ motion to compel discovery appears not to be a

motion, but his actual discovery request served on the

defendants. If he intended it as a motion, it is clearly

premature. A motion to compel discovery may not be filed until

the opposing party has failed or refused to produce the requested

discovery, and the party who served the discovery then engages in

an extrajudicial effort to resolve the parties’ disagreement. 

Fed.R.Civ.P. 37(a)(1)(“The motion must include a certification

that the movant has in good faith conferred or attempted to

confer with the person or party failing to make disclosure or

discovery in an effort to obtain it without court action”). The

motion will therefore be denied, but to the extent that the

motion is actually a discovery request, the denial of the motion

does not relieve defendants of their obligation to respond to the

request.

 III.

For the reasons set forth above, defendants’ motion to

strike (Doc. 22) is granted, and the response to the answer (Doc.

21) is stricken. Plaintiff’s motions for joinder (Doc. 24) and

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to compel discovery (Doc. 25) are denied.

IV.

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp 

United States Magistrate Judge

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